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UNITED STATES v. PIXLEY

July 8, 1998

UNITED STATES OF AMERICA,
v.
ANTHONY J. PIXLEY, Defendant.



The opinion of the court was delivered by: KESSLER

FINDINGS OF FACT AND CONCLUSION OF LAW

 Defendant has filed a Motion to Suppress Statements and Tangible Evidence [# 9]. The Motion seeks to suppress a gun which was found in his home at the time of his arrest on December 19, 1997, as well as all statements he made at the time of his arrest and interrogation. On June 25 and 26, 1998, the Court held an evidentiary hearing on the Motion. At that time the Court denied the Motion to Suppress statements, for the reasons stated on the record, and took under advisement the Motion to Suppress Tangible Evidence. Upon consideration of the evidence presented at the suppression hearing, the applicable case law, and the arguments of counsel the Court rules as follows:

 Findings of Fact

 On December 19, 1997, at approximately 5 a.m., a group of 10 to 12 FBI agents arrested the Defendant Anthony Pixley and his wife Donna Covington-Pixley, in their home at 108 Webster Street, NE, Washington, D.C. The agents were executing arrest warrants for both Mr. and Mrs. Pixley on bank fraud charges then pending in federal court in Greenbelt, Maryland.

 The agents knocked loudly on the front door of the Defendant's home. Mr. Pixley was in the upstairs bedroom with his wife and upon hearing the agents identifying themselves, immediately answered the door and let them in. He was then, in the jargon of the FBI, "secured", i.e., he was forced to lie face down on the floor, handcuffed, and rendered harmless. He immediately identified himself as Anthony Pixley, his identity was confirmed, and he was then formally arrested. These events occurred within a very short time span of several minutes.

 Mrs. Covington-Pixley emerged from the bedroom to see what was happening. Five or six agents dashed up the staircase and immediately executed their arrest warrant for her, i.e., they forced her to lie face down on the floor, handcuffed her, and formally arrested her. *fn1"

 The agents, all with guns drawn, fanned out into the two other upstairs bedrooms. In one they found the Pixleys' 14-year old son. After checking under the bed and in the closet, the boy was left alone. In the other bedroom they found two teen-age girls, one of whom was the Pixleys' daughter and the other of whom was the daughter's close friend. Despite their youth, their highly emotional states at the 5 a.m. police intrusion, and Mrs. Covington-Pixley's cries that "they were only children", the FBI agents handcuffed the girls for somewhere between 15 and 45 minutes.

 The agents then went into the Pixleys' master bedroom, looked in a closet, lifted up the mattress to look under the bed, and found a .38 caliber Rossi revolver containing six rounds of .38 caliber ammunition. The discovery of the gun under the bed occurred approximately 15-20 minutes after the handcuffing and subsequent arrest of Mr. Pixley and approximately 10 minutes after the arrest and handcuffing of Mrs. Covington-Pixley.

 The agents were aware, when they went into the Pixley home, that Mr. Pixley had a 1984 conviction for Murder in the Second Degree.

 Much of the conflicting testimony at the hearing centered on the precise dimensions of the Pixleys' bed, i.e., how far off the floor it was, whether an adult could slide under it, what the skirt of the bed cover revealed, the distance between the bed's bottom rung and the floor, etc. Based upon that testimony, as well as the size of a particular boot which was admitted in evidence, the Court finds that the distance between the bottom of the bed and the floor was sufficiently narrow that a person could not in fact have hidden under the bed.

 CONCLUSIONS OF LAW

 All counsel agree that this Motion is governed by two cases, one from the Supreme Court and one from our Court of Appeals: Maryland v. Buie, 494 U.S. 325, 108 L. Ed. 2d 276, 110 S. Ct. 1093 (1990), and United States v. Ford, 312 U.S. App. D.C. 301, 56 F.3d 265 (D.C. Cir. 1995).

 In Buie the Supreme Court held that the Fourth Amendment permits a properly limited "protective sweep" conducted incident to an in-home arrest on a warrant in order to protect the safety of police officers or others. The Court emphasized that a "'protective sweep' is a quick and limited search of premises,...narrowly confined to a cursory visual inspection of those places in which a person might be hiding". 495 U.S. 320 at 327, 110 S. Ct. 1880, 109 L. Ed. 2d 325. The test for the propriety of such a protective sweep is whether "the searching officer 'possessed a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted' the officer in believing,' [citations omitted] that the area swept harbored an individual posing a danger to the officer or others." Id.

 In Ford, as in Buie and in this case, the police made a warrantless search of the home in which they were executing an arrest warrant. Our Court of Appeals, building on the Buie analysis, concluded that the officers lacked articulable facts to support a belief that the bedroom, in which a gun clip was found after the ...


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